Preview
Filing # 144272673 E-Filed 02/21/2022 10:46:37 AM
HERNAN LOPEZ AND IBETTY LOPEZ, IN THE CIRCUIT COURT OF THE 11"
JUDICIAL CIRCUIT IN AND FOR
Plaintiffs, MIAMI-DADE COUNTY, FLORIDA
v. CIVIL DIVISION
WESTON INSURANCE COMPANY, CASE NO.: 2021-020616-CA-01
Defendant.
/
PLAINTIFFS’ RESPONSE TO DEFENDANT'S MOTION TO DISMISS REGARDING
FLORIDA STATUTE 627.70152 AND THE NEWLY ENACTED
PRESUIT NOTICE REQUIREMENT
COMES NOW, Plaintiffs, HERNAN LOPEZ AND IBETTY LOPEZ (hereinafter
"Plaintiffs"), by and through the undersigned counsel, pursuant to the Florida Rules of Civil
Procedure, and hereby files this Response to Defendant's Motion to Dismiss regarding Florida
Statute 627.70152 and the Newly Enacted Presuit Notice Requirement and, in support thereof,
states as follows:
1. This matter stems from a breach of a property insurance policy issued with effective
dates of coverage of April 9, 2020 to April 9, 2021.
2. On July 1, 2021, more than fourteen (14) months after the inception of the operative
policy period, the newly enacted law under Section 627.70152, Florida Statutes, took effect.
3. Section 627.70152(3)(a), Florida Statutes, imposes as a condition precedent to suit
the filing of a presuit notice for all claims subject to the statute; however, given that the statute
lacks any mention of retroactivity and substantially affects the rights of policyholders, the presuit
notice requirement only pertains to policies which took effect after July 1, 2021.
4. Now, despite the fact that the policy was in effect prior to the July 1, 2021 initiation
date, Defendant filed its motion to dismiss for failure to provide a presuit notice and motion for
extension of time to respond to discovery as pretextual means to delay this matter.MEMORANDUM OF LAW
I. STANDARD OF A MOTION TO DISMISS
A motion to dismiss tests whether the Plaintiff have stated a cause of action. Zeiger Crane
Rentals, Inc. v. Double A Industries, 16 So. 3d 907, 910, (Fla. 4th DCA 2009).
A motion to dismiss is not, however, to be used to determine factual issues. See The Fla. Bar v.
Greene, 926 So.2d 1195, 1199 (Fla.2006). See also Chodorow v. Porto Vita, Ltd., 954 So.2d 1240,
1242 (Fla. 3d DCA 2007). When determining the merits of a motion to dismiss, a court may not
go beyond the four corners of the complaint or petition. Zieger, 16 So. 3d at 910. All
allegations contained within the Complaint must be taken as true and any reasonable inferences
drawn from the complaint must be construed in favor of the non-moving party.
See Chodorow, 954 So.2d at 1242.
II. STANDARD FOR RETROACTIVE APPLICATION OF NEW LAW
All newly enacted statutes are presumed to apply prospectively. Metro. Dade County v.
Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla. 1999). In order to apply a statute retroactively,
there is a two-pronged test which must be met: “First, the Court must ascertain whether the
Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly
expressed, the Court must determine whether retroactive application would violate any
constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010)
citing Metro. Dade, 737 So.2d at 499.
Furthermore, as it relates specifically to insurance policies, “the statute in effect at the time
an insurance contract is executed governs substantive issues arising in connection with that
contract.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996); see
also Lumbermens Mut. Cas. Co. v. Ceballos, 440 So.2d 612, 613 (Fla. 3d DCA 1983) (holdingthat a policy is governed by the law in effect at the time the policy is bound and issued as opposed
to the law in effect at the time a loss giving rise to a claim occurs); Hausler v. State Farm Mut.
Auto. Ins. Co., 374 So.2d 1037, 1038 (Fla. 2d DCA 1979) (holding that the date of the loss does
not determine the law applicable to a subsequent dispute).
“TE]ven where the Legislature has expressly stated that a statute will have retroactive
application, this Court will reject such an application if the statute impairs a vested right, creates a
new obligation, or imposes a new penalty ... [and] ‘attaches new legal consequences to events
completed before its enactment.’” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla.
2010) quoting Metro. Dade, 737 So.2d at 499 (quoting Landgraf v. USI Film Prods., 511 U.S. 244,
270 (1994)); see also State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995).
Ill.AS NEITHER PRONG REGARDING THE RETROACTIVITY ANALYSIS CAN
BE SATISFIED, THIS HONORABLE COURT MUST NOT APPLY THE PRESUIT
NOTICE OF INTENT TO INITIATE LITIGATION AS RETROACTIVE AND,
THEREFORE, SHALL NOT DISMISS PLAINTIFFS’ CAUSE OF ACTION
a. Because there is no clear legislative intent regarding the retroactive application of
Section 627.70152, Florida Statutes, the first prong of the retroactivity analysis
cannot be met and, therefore, this Honorable Court may not impose the presuit
notice requirement, nor associated penalties, upon the Plaintiffs.
As stated above, Section 627.70152(3)(a), Florida Statutes, like all newly enacted statutes,
is presumed to apply only prospectively, and that presumption can only be rebutted by “clear
legislative intent” as “[r]equiring clear intent assures that [the legislature] itself has affirmatively
considered the potential unfairness of retroactive application and determined that it is an acceptable
price to pay for the countervailing benefits.” Metro. Dade County 737 So. 2d at 499 — 500.
“The policy rationale behind this rule of construction is that the retroactive operation of
statutes can be harsh and implicate due process concerns.” Jd. “In order to determine legislative
intent as to retroactivity, both the terms of the statute and the purpose of the enactment must beconsidered.” Jd. at 500. “However, the mere fact that ‘retroactive application of a new statute
would vindicate its purpose more fully ... is not sufficient to rebut the presumption against
retroactivity.’” Id. quoting Landgraf v. USI Film Products, 511 U.S. at 286 (1994).
Here, there is no evidence that the statute was intended to be applied retroactively. “If the
Legislature intended to make the statute retroactive it could easily have said so.” Promontory
Enterprises, Inc. v. S. Eng'g & Contracting, Inc., 864 So. 2d 479, 484 (Fla. 5th DCA 2004). It is
not the court’s “function to divine legislative intent of retroactivity with guess or assumption. If
there is not clear evidence that the Legislature intended to apply the statute retroactively,” the first
prong of the requisite analysis must be answered in favor of non-retroactivity. Jd.
Even the most nuanced argument that the statute is written in present tense does not serve
to prove retroactive intent in anyway. In fact, this argument was expressly rejected by the United
States Supreme Court over a decade ago. See Carr v. U.S., 560 U.S. 438, 450 (2010) (“Given the
well-established presumption against retroactivity... it cannot be the case that a statutory
prohibition set forth in the present tense applies by default to acts completed before the statute’s
enactment.”)citing Johnson v. United States, 529 U.S. 694, 701 (2000) (“Absent a clear statement
of that intent, we do not give retroactive effect to statutes burdening private interests”).
Numerous prior statutory changes which impose similar presuit requirements have been
held not to apply retroactively. See, e.g., Kravitz v. Benjamin, 608 So. 2d 584 (Fla. 4th Dist. App.
1992)(Presuit requirements of medical malpractice statute did not apply retroactively); Hassen v.
State Farm Mut. Auto. Ins. Co., 674 So. 2d 106 (Fla. 1996)(Statute requiring underinsured motorist
carrier to pay amount of offer from liability insurer within 30 days in order to preserve subrogation
claim was substantive amendment operating prospectively, not retroactively); Fla. Ins. Guar.
Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., 67 So. 3d 187, 197 (Fla. 2011)(2005 amendmentsto section 627.7015, Florida Statutes requiring that notice of the availability of mediation be
provided to a policyholder prior to invocation of the appraisal process by residential insurers do
not apply retroactively); See also, Zawadzki v. Liberty Mut. Fire Ins. Co., 8:12-CV-950-T-30MAP,
2012 WL 3656456, at *3 (M.D. Fla. Aug. 23, 2012)(statutory changes to sinkhole statute do not
apply retroactively); Am. Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011)(Asbestos and Silica
Compensation Fairness Act section providing that particular physical impairment symptoms were
an essential new element of asbestos cause of action, a requirement that never existed before the
Act’s enactment, could not be retroactively applied to Plaintiff asbestos-related claims for
damages consistent with due process clause of State Constitution); State Farm Mut. Auto. Ins. Co.
v. Laforet, 658 So. 2d 55 (Fla. 1995)(Statute altering damages recoverable in statutory bad faith
action against uninsured motorist insurer cannot be applied retroactively, notwithstanding that
legislature expressly stated that statute was remedial and was to be applied retroactively).
Because there exists no evidence of legislative intent, clear or otherwise, permitting the
retroactive application of Section 627.70152(3)(a), the inquiry ends. The statute cannot, as a matter
of settled law, be applied retroactively.
b. Even if the legislature included clear language establishing legislative intent to
apply the presuit notice requirement retroactively, because such a requirement
alters substantive rights, creates new obligations, and imposes penalties, the
statute fails the second prong of the retroactively analysis and, therefore, forbids
this Honorable Court from imposing any presuit notice requirements upon the
Plaintiffs.
Even if the Court were to find, despite the absence of any clear legislative intent, grounds
for the retroactive application of Section 627.70152(3)(a), such an application would still be
impermissible, as it would clearly run afoul of constitutional principles and the stare decisis
established by Menendez v. Progressive finding that a presuit notice of intent to initiate litigationis to be considered a substantive change thereby affecting constitutional protections in a manner
preventing retroactive application.
In Menendez, an insurance carrier failed to pay personal injury protection (“PIP”) benefits
to its insured after she was injured in an automobile accident in June 2001. Menendez, supra, at
874. The policy in question was issued with effective dates of coverage between April 1, 2001,
and October 1, 2001. /d. at 876. Beginning on June 19, 2001, during the effective dates of
coverage for the insured’s policy, the legislature effectuated an amendment to Section 627.736,
Florida Statutes, which, for the first time, required that an insured seeking PIP benefits must, in
pertinent part, provide “written notice of an intent to initiate litigation.” Fla. Stat. § 627.736(11)(a)
(2001). The insured in Menendez initiated their lawsuit against the insurance carrier in November
2002, nearly a year and a half after the effective date of the newly enacted presuit notice provision
in the relevant statute. Menendez, supra, at 875. After extensive litigation at both the trial and
appellate levels, Menendez was brought before the Supreme Court of Florida where it was
ultimately determined that such a notice of intent to initiate litigation, even in the face of legislative
intent for retroactive application, violated the substantive rights of the insured and, therefore, were
not permissible to be applied retroactively. Jd. at 880.
In reaching their decision regarding the second prong analysis, the Menendez Court stated
that “the central focus of this Court’s inquiry is whether retroactive application of the statute
‘attaches new legal consequences to events completed before its enactment.’” Menendez, 35 So.
3d at 877 quoting Landgraf v. USI Film Prods., 511 U.S. at 270.
In analyzing this second prong, the Menendez Court noted that, as with the enaction of
Section 627.70152, Florida Statutes, the operative statutory changes in Menendez ‘(1) impose apenalty, (2) implicate attorneys’ fees, (3) grant an insurer additional time to pay benefits, and (4)
delay the insured's right to institute a cause of action.” Menendez, 35 So. 3d at 878.
The Court first illustrated that the Florida Supreme Court “generally held that statutes with
provisions that impose additional penalties for noncompliance or limitations on the right to recover
attorneys' fees do not apply retroactively “because it is, in substance, a penalty.” Jd. quoting State
Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995). Furthermore, the Court
previously held that “the statutory right to attorneys’ fees is not a procedural right, but rather a
substantive right.” Menendez, surpa, citing Moser v. Barron Chase Sec., Inc., 783 So. 2d 231, 236
(Fla.2001). Finally, the Court determined that, as is the exact scenario with the matter sub judice,
because the statutory amendment in Menendez allowed the avoidance of payment of attorney’s
fees which were available at the time the policy took effect, permitted delayed payment regarding
a claim by the insurer, and deferred the insured’s ability to file a cause of action for unpaid policy
benefits, the statutory changes were substantive, not procedural, in nature and could not be applied
retroactively. See Menendez at 879-80.
As noted, the facts of this case are materially indistinct from those considered by the Florida
Supreme Court in Menendez. Section 627.70152, Florida Statutes, states, in pertinent part, as
follows:
As a condition precedent to filing a suit under a property insurance policy, a
claimant must provide the department with written notice of intent to initiate
litigation on a form provided by the department. Such notice must be given at least
10 business days before filing suit under the policy, but may not be given before
the insurer has made a determination of coverage under s. 627.70131. Notice to the
insurer must be provided by the department to the e-mail address designated by the
insurer under s. 624.422. The notice must state with specificity all of the following
information: 1. That the notice is provided pursuant to this section. 2. The alleged
acts or omissions of the insurer giving rise to the suit, which may include a denial
of coverage. 3. If provided by an attorney or other representative, that a copy of the
notice was provided to the claimant. 4. If the notice is provided following a denial
of coverage, an estimate of damages, if known. 5. If the notice is provided followingacts or omissions by the insurer other than denial of coverage, both of the following:
a. The presuit settlement demand, which must itemize the damages, attorney fees,
and costs. b. The disputed amount. Documentation to support the information
provided in this paragraph may be provided along with the notice to the insurer.
Fla. Stat. § 627.70152(3)(a) (2021). In addition, the statute provides that the “[s]ervice of a notice
tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before
the end of the 10-day notice period.” Fla. Stat. § 627.70152(3)(b) (2021). Furthermore, the statute
provides the insurer with 10 business days to respond to the presuit notice by accepting coverage,
denying coverage, asserting the right to reinspect the property, making a settlement offer, or
requiring the claimant to participate in appraisal or another method of alternative dispute
resolution. Fla. Stat. § 627.70152(4) (2021). Additionally, the statute imposes a penalty for non-
compliance with the pre-suit notice. Fla. Stat. § 627.70152(5) (2021). Finally, the statute
drastically impacts a claimant’s ability to collect attorney fees. Fla. Stat. § 627.70152(8) (2021).
The provisions found to be “problematic” by the Menendez Court are directly contemplated
by the statute in question in this matter. As in Menendez, the statutory provisions of Section
627.70152 explicitly “(1) impose a penalty, (2) implicate attorneys’ fees, (3) grant an insurer
additional time to pay benefits, and (4) delay the insured’s right to institute a cause of action.”
Menendez, 35 So. 3d at 878. Accordingly, it is patently frivolous to suggest that Section 627.70152
is anything but substantive or that retroactive application is permissible under the binding
precedent set by the Supreme Court of Florida. For these reasons, the second prong of the
retroactivity analysis cannot be met.
In fact, Menendez is so well established in the state of Florida, other Courts and carriers
have already rejected the argument brought forth by Defendant in light of same. See attached
Composite Exhibit A.IV.CONCLUSION
In the Complaint, the Plaintiffs allege that “[a]ll conditions precedent to the filing of this
lawsuit have occurred, have been waived, or have been performed.” This, of course, is correct
because the Complaint was filed based on an insurance policy in place long before any substantive
statutory changes took effect. The only way for these statutory changes to apply to the policy in
question would be for the two prong analysis regarding retroactive application of statutes to be
adequately fulfilled; however, due to a total lack of clear, or any, language indicating the
Legislature’s intent for retroactivity, the substantive nature of the changes contained within the
operative statute, and the well-established biding precedent regarding same, there is absolutely no
ability for the Defendant to satisfy either prong of the analysis, let alone both. As such, this
Honorable Court must deny Defendant’s Motion to Dismiss and Motion for Extension of Time to
Respond to Discovery.
WHEREFORE, for the foregoing reasons, Plaintiffs, HERNAN AND IBETTY LOPEZ,
respectfully request that this Honorable Court deny Defendant’s Motion to Dismiss and Motion to
for Extension of Time to Respond to Discovery, and grant any and all other relief this Court deems
just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this foregoing document was sent
via email on this 21* day of February, 2022.
VARGAS GONZALEZ
BALDWIN DELOMBARD, LLP.
815 Ponce De Leon Blvd., 3“ Floor
Coral Gables, FL 33134
Tel: 305.631.2528
Fax: 305.631.2741
E-mail: Servicel0@VargasGonzalez.comE-mail: KBuckalew@VargasGonzalez.com
By: /s/
Katherine N. Buckalew, Esq.
Fla. Bar No.: 1017725“Composite Exhibit A”Filing # 142235910 E-Filed 01/19/2022 12:17:30 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2021-018103-CA-01
SECTION: CA02
JUDGE: William Thomas
Hulberto Alvarez et al
Plaintiff(s)
vs.
Universal Property & Casualty Insurance Company
Defendant(s)
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court for consideration of the Defendant’s Motion
to Dismiss, and the Court having heard argument from the parties and being otherwise fully
advised of the premises, it is hereby ORDERED AND ADJUDGED as follows:
Defendant’s Motion to Dismiss is predicated on Plaintiffs’ failure to comply with the pre-
suit notice requirements of Fla. Stat. § 627.70152. It is undisputed that the policy of insurance at
issue in this case pre-dates the enactment of Fla. Stat. § 627.70152; the policy was in effect from
September 9, 2019 to September 9, 2020, and Fla. Stat. § 627.70152 was signed into law on June
11, 2021. Nonetheless, Defendant urges this Court to apply the statute retroactively. This Court
finds that Fla. Stat. § 627.70152 cannot be retroactively applied and therefore Plaintiffs were not
obligated to comply with its pre-suit notice requirements. Accordingly, Defendant’s Motion to
Dismiss is denied.
Newly enacted statutes are presumed to apply prospectively only. Metro. Dade County v.
Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla. 1999). In the context of first party insurance
actions in which a statutory change post-dates the insurance policy, Menendez v. Progressive
Express Insurance Co., 35 So.3d 873 (Fla. 2010) is instructive. Menendez was a first party action
in which the insurance policy at issue predated a change in the law requiring the insured to
provide pre-suit notice of intent to litigate. The Supreme Court of Florida applied a two-pronged
test to determine whether the new statutory requirement could be applied retroactively to bind
the insureds:
1. Did the legislature clearly intend for the changes in the statute to be applied
retroactively?
2. If so, would enforcing the legislative intent to apply the statute retroactively violate
constitutional principles by substantively changing individuals’ pre-existing rights?
Both prongs of the Menendez test compel this Court to decline to apply Fla. Stat. §
627.70152 retroactively. Regarding the first prong, “[i]f the Legislature intended to make the
Case No: 2021-018103-CA-01 Page | of 4statute retroactive it could easily have said so.” It did not do so here. The text of the statute is
silent regarding retroactive application. Therefore, this Court concludes that Fla. Stat. §
627.70152 cannot be retroactively applied pursuant to the first prong of the Menendez test.
Even assuming arguendo that the Legislature did clearly intend for Fla. Stat. § 627.70152
to be applied retroactively, this Court finds that the statute substantively changes pre-existing
rights of policyholders and therefore cannot be applied retroactively under the second prong of
Menendez. “[T]he Court will reject retroactive application if it would impair a vested right,
create a new obligation, or impose a new penalty.” Id. at 877. Like the statute at issue in
Menendez, Fla. Stat. § 627.70152 constitutes a substantive change in law because it “(1)
impose[s] a penalty, (2) implicate[s] attorneys’ fees, (3) grant[s] an insurer additional time to pay
benefits, and (4) delay[s] the insured’s right to institute a cause of action.” Id. at 878.
Noncompliance with § 627.70152’s pre-suit notice requirement results in penalties of
dismissal of the insured’s lawsuit pursuant to § 627.70152(5) and forfeiture of the insured’s right
to recover attorneys’ fees pursuant to § 627.70152(8)(b). It is settled law in Florida that the
statutory right to attorneys’ fees is a substantive right and therefore statutory limitations on same
cannot be applied retroactively. See generally, Moser v. Barron Chase Sec., Inc., 783 So.2d 231,
236 (Fla. 2001); Young v. Altenhaus, 472 So.2d 1152 (Fla. 1985); State Farm Mut. Auto. Ins.
Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995); Menendez v. Progressive Express Insurance Co.,
35 So.3d 873 (Fla. 2010). The new statute limits insureds’ right to attorneys’ fees both by
prohibiting the recovery of fees if a lawsuit is dismissed for noncompliance and by establishing a
new schedule for calculating and awarding fees based on the difference between the amount
ultimately obtained by the insured and the pre-suit settlement offer made by the insurer.
Defendant argues that the provisions of Fla. Stat. § 627.70152 implicating attorneys’ fees
should be separated from the pre-suit notice requirement such that the latter remains retroactively
enforceable even if the former is not. This Court disagrees. Pursuant to the plain language of Fla.
Stat. § 627.70152(8)(b), if this Court were to grant Defendant’s Motion to Dismiss for Plaintiffs’
failure to comply with the pre-suit notice requirements of (3)(a), then Plaintiffs would be
prohibited from recovering attorneys’ fees for services rendered up to the point of dismissal. This
Court finds that it would be illogical, unworkable, and contrary to legislative intent to
retroactively enforce the provision of the statute requiring dismissal for failure to comply with
the pre-suit notice requirement while declining to retroactively enforce the provision prohibiting
an award of attorneys’ fees upon such dismissal.
The new statute implements further substantive changes by allowing insurers to delay
payment of benefits to insureds, which not only impacts insureds’ rights to timely payment of
insurance benefits but also limits their entitlement to interest on overdue benefits, their right to
bring suit for overdue benefits, and their right to attorneys’ fees.
In sum, the statute at issue here is materially indistinguishable from that which was
considered by the Florida Supreme Court in Menendez. Therefore, this Court finds that Fla. Stat.
§ 627.70152 constitutes a substantive change in law and therefore cannot be retroactively applied
to bind insureds who entered an insurance contract before the statute was enacted.
For the aforementioned reasons, Defendant’s Motion to Dismiss is hereby DENIED.
Defendant shall file its answer to Plaintiffs’ Complaint within 20 days of the date of this Order.
Additionally, Defendant’s Motion for Protective Order is hereby DENIED as moot. Defendant
Case No: 2021-018103-CA-01 Page 2 of 4shall file its responses to Plaintiffs’ discovery requests within 30 days of the date of this Order.
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 19th day of
January, 2022.
(poms -cria pao spoone naioa
2021-018103-CA-01 01-19-2022 12:04 PM
Hon. William Thomas
CIRCUIT COURT JUDGE
Electronically Signed
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Electronically Served:
Andrew J Vargas, epleadings@vargasgonzalez.com
Beatriz Benitez, BBenitez@VargasGonzalez.com
Beatriz Benitez, Service7@VargasGonzalez.com
Eduardo Pimentel, EPimentel@VargasGonzalez.com
Eduardo Pimentel, EPLeadings@VargasGonzalez.com
Eduardo Pimentel, ServiceS@VargasGonzalez.com
Elexis Stephanie Wolis, upciceservice0 1 @universalproperty.com
Elexis Stephanie Wolis, rm1110@universalproperty.com
Elexis Stephanie Wolis, ew0518@universalproperty.com
Joseph A Kovecses Jr., jkovecses@pdmplaw.com
Joseph A Kovecses Jr., vdomenech@pdmplaw.com
Joseph A Kovecses Jr., cmoreno@pdmplaw.com
Katherine N. Buckalew, kbuckalew@vargasgonzalez.com
Katherine N. Buckalew, Service 10@vargasgonzalez.com
Paula B Leite, pleite@pdmplaw.com
Paula B Leite, lspeake@pdmplaw.com
Paula B. Leite, Esquire, pleite@pdmplaw.com
Paula B. Leite, Esquire, lspeake@pdmplaw.com
Case No: 2021-018103-CA-01 Page 3 of 4Physically Served:
Case No: 2021-018103-CA-01 Page 4 of 4IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
TS
GENERAL CIVIL DIVISION B
_ SS
DONALD STOKELY and ap g
MEIKAH STOKELY,
CASE NO: 21-CA-5705
Plaintiffs,
ve
DIVISION: J
SECURITY FIRST INSURANCE COMPANY,
Defendant.
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
7
u
T AGH 128
THIS CAUSE having come before the Court on Defendant, Security First Insurance
Company’s, Motion to Dismiss, having reviewed the Motion, Plaintiffs response, and otherwise
being duly advised in the premises, it is hereby ORDERED AND ADJUDGED that:
Defendant’s Motion is DENIED.
This case involves Plaintiffs claim for benefits under a policy of insurance with effective
dates of December 15, 2019, to December 15, 2020. Plaintiff's Complaint was filed on July 9,
2021. F.S. § 627.70152 became effective July 1, 2021. F.S. § 627.70152 creates pre-suit notice
requirements similar to the medical malpractice pre-suit notice statute. Defendant argues that
F.S. § 627.70152 should be retroactively applied here. However, this Court disagrees. The
statute is substantive and cannot be applied retroactively to a policy which pre-dates the effective
date of July 1, 2021.
DONE AND ORDERED, this / Daay of re 22
[”Copies furnished to:
Barbara Hernando, Esq.
Kevin Elmore, Esq.Filing # 136331392 E-Filed 10/11/2021 06:37:08 PM
IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. COCE21040134 DIVISION 55 JUDGE Daniel Kanner
Luis Gomez, et al
Plaintiff(s) / Petitioner(s)
Vv.
Spinnaker Insurance Company
Defendant(s) / Respondent(s)
ORDER DENYING MOTION TO DISMISS
THIS CAUSE having come before the Court for consideration of the Defendant's Motion to
dismiss, and the Court having heard argument from the parties and being otherwise fully
advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED as follows:
Undisputed Facts
1. This case involves a first party property damage claim arising from a water leak which occurred on October
2, 2020.
. The claim for the damage was denied by the Defendant.
. The effective policy period for this claim is May 27, 2020 to May 27, 2021.
4. On June 11, 2021, Governor DeSantis signed SB 76 which became effective July 1, 2021. SB 76 is a
comprehensive bill relating to property insurance which created Florida Statute §627.70152 addressed to
suits arising under a property insurance policy such as that in the present case.
5. Section 627.70152(3),et seq., expressly mandates that an insured comply with pre-suit notice
wn
requirements, which include the service of a Notice of Intent to Initiate Litigation on the Department of
Financial services, as a condition precedent to filing suit.
6. The Plaintiff did not comply with the notice requirement.
. On July 13, 2021, this suit was filed.
8. On August 17, 2021, the Defendant moved to dismiss this action for noncompliance with §627.70152.
NCaseNo: COCE21040134
Page 2 of 3
Analysis
There is little case law on point due to the newness of this law. The Plaintiff cited Menendez v Progressive
Express Insurance Co 35 So.3d 873 (Fla 2010) for the proposition that the statute would substantively change the
Plaintiff's rights under the policy and therefore should not be applied retroactively to a policy that predates the
change in the law. The Defendant urged the court to rely on the reasoning in SFR Services v Indian Harbor
Insurance Company, 2021 WL 1165185 to conclude that the Statute only creates procedural changes and should
be applied retroactively.
The case at bar is similar Menendez. Although Menendez dealt with a different statute (PIP), it was a first party
claim where the policy predated the change in the law. The Change in the law in Menendez also involved a pre-
suit notice of intent to litigate. The Supreme Court in Menendez found that while the Legislature intended the new
Statute to apply retroactively, it substantively altered the rights of the parties that were already in existence at the
time of the change in the law. As a result of these substantive changes, the law could not be applied
retroactively.
SER, however, is a case that involved an Assignment of Benefits (AOB). While the SFR Court allowed the
application of a statute that was passed after the Insurance policy became effective, its reasoning was not at odds
with Menendez. In_SER, the Insurance Policy predated the change in the law but the AOB was signed after the
law became effective. The Court reasoned that the law changed what was required for a valid AOB, but did not
change the terms of the preexisting policy. Ultimately, because the AOB was signed after the change in the law,
it was not found to be applied retroactively.
In this matter, there is no AOB. It is a first party action in which the relevant contract was signed prior to the
change in the law. The facts and issue in this matter are very similar to those in Menendez. Therefore, this
Court finds that the change in the law is substantive and should not be applied retroactively.
It is hereby Ordered and adjudged that the Defendant's Motion to Dismiss is DENIED.
DONE and ORDERED in Chambers, at Broward County, Florida on 10-11-2021.
7 ———
COCE21040134 10-11-2021 1:28 PM
Hon. Daniel Kanner
COUNTY JUDGE
Electronically Signed by Daniel Kanner
Copies Furnished To:
Cathleen Rodriguez , E-mail : crodriguez@louislawgroup.com
Charles A. Muniz , E-mail : cmuniz@louislawgroup.com
Charles A. Muniz , E-mail : service@louislawgroup.com
Pierre Andre Louis Esq. , E-mail : pierre@louislawgroup.com
Pierre Andre Louis Esq. , E-mail : service@louislawgroup.com
Steven E Foor , E-mail : sfoor@wylandtadros.comCaseNo: COCE21040134
Page 3 of 3
Steven E Foor , E-mail : asanders@wylandtadros.comFiling # 136440256 E-Filed 10/13/2021 09:41:57 AM
IN THE COUNTY COURT IN AND FOR LEE
COUNTY, FLORIDA
JEANINE MICAT,
JULIE PIERRE,
PLAINTIFFS, CASE NO.: 21-CC-003549
VS.
UNITED PROPERTY & CASUALTY INSURANCE COMPANY,
DEFENDANT.
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came to be heard on Defendant’s Motion to dismiss, and after hearing
argument on October 11, 2021, reviewing the file, and otherwise being fully apprised of the
premises, ORDERS AND ADJUDGES:
Defendant’s Motion to Dismiss was predicated on Plaintiffs’ failure to comply with the
pre-suit notice requirements of Fla. Stat. § 627.70152.
Defendant’s Motion to Dismiss is DENIED. Menendez v. Progressive Express Ins. Co..
35 So. 3d 873 (Fla. 2010).
Defendant shall answer the complaint within 20 days.
DONE AND ORDERED in Chambers in Lee County, Florida
(XW
Electronic Service List Signed by Nicole Lynn Mirra 10/13/2021 09:41:41 eDeSPXGe
Brian Adam Oltchick
Brian Adam Oltchick
Brian Adam Oltchick
Carolina M. Suazo, Esq.
Carolina Melinda Suazo Esq.
Carolina Melinda Suazo Esq.
John Stat Bernstein
eFiled Lee County Clerk of Courts Page 1IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
LENORA CLA YBORNE CASE NO: 21-CC-078099
Plaintiff,
vs.
AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA
Defendant.
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS BASED UPON FAILURE
TO SUBMIT A NOTICE OF INTENT TO INITIATE LITIGATION PER FLA. STAT.
$627.70152
THIS MATTER having come before the Court on Defendant’s Motion to Dismiss
Plaintiff's Complaint (hereinafter “Motion”), the Court having heard argument of counsel at the
hearing on October 11, 2021, and being otherwise fully advised on the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. The Motion to Dismiss is denied.
2. Defendant shall file a response to the Complaint within 20 days of this Order.
DONE AND ORDERED in Chambers in Tampa, Hillsborough County, Florida, this
day of , 2021.
eee 099 (ON 4 Sigs AM
(099 10/14/202179:52:53 AM
HONORABLE JAMES S. MOODY IIT
COUNTY COURT JUDGE
Copies furnished to:
Alex Lyle, Esq.
Attorney for Defendant
Jeremy R. Griner, Esq.
Attorney for Plaintiff
10/14/2021 09:52:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit. Page 1IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL CIVIL DIVISION
EDWINA PEYTON,
CASE NO.: 21-CA-5661
Plaintiff,
DIVISION: J
Vv.
SECURITY FIRST INSURANCE
COMPANY,
Defendant.
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court on Defendant, Security First Insurance
Company’s, Motion to Dismiss, having reviewed the Motion, Plaintiff's response, and otherwise
being duly advised in the premises, it is hereby ORDERED AND ADJUDGED that:
Defendant’s Motion is DENIED.
This case involves Plaintiff's claim for benefits under a policy of insurance with effective
dates of April 25, 2020, to April 25, 2021. Plaintiff's Complaint was filed on July 8, 2021. F.S.
§ 627.70152 became effective July 1, 2021. F.S. § 627.70152 creates pre-suit notice requirements
similar to the medical malpractice pre-suit notice statute and personal injury protection pre-suit
notice. Defendant argues that F.S. § 627.70152 should be retroactively applied here. However,
this Court disagrees. The statute is substantive and cannot be applied retroactively to a policy
which pre-dates the effective date of July 1, 2021. See Menendez v. Progressive, 35 So.3d 873
(Fla. 2010).
10/25/2021 10:57:22 AM Electronically Filed: Hillsborough County/13th Judicial Circuit. Page 1Accordingly, Defendant’s Motion is Denied. Defendant shall have ten days to file a
response to Plaintiff's Complaint.
DONE and ORDERED in Chambers at Hillsborough County, FL on this day of
oe arcomagseer Tiosor isi SM
21-CA-005661 10:57:21 AM
Honorable Rex Martin Barbas
Copies furnished to:
Aaron S. Kling, Esquire, For the Plaintiff
Kevin B. Elmore, Esquire, For the Defendant
10/25/2021 10:57:22 AM Electronically Filed: Hillsborough County/13th Judicial Circuit. Page 2Filing # 137857198 E-Filed 11/03/2021 05:11:30 PM
IN THE CIRCUIT COURT FOR THE
IST JUDICIAL CIRCUIT IN AND
FOR ESCAMBIA COUNTY, FL.
CHARLES AND VICTORIA CARTER
Plaintiffs, CASE NO.: 2021-CA-002363
vs.
HOMEOWNERS CHOICE PROPERTY AND CASUALTY INSURANCE
Defendant.
/
ORDER DENYING DEFENDANT’S MOTION TO
DISMISS PLAINTIFFS’ COMPLAINT
THIS MATTER having come before this Court upon Defendant’s Motion to Dismiss Plaintiffs”
Complaint, and the Court having reviewed the Motion and court file and being otherwise fully
advised by the parties at a hearing on Defendant’s Motion on October 29, 2021, it is hereby
ORDERED AND ADJUDGED that:
1. Plaintiff's are not required to provide a Notice of Intent to Initiate Litigation pursuant to F.S.
627.70152(3)(2), and such requirement is not retroactively applied, as it is a substantive
change to the law.
2. Defendant’s Motion to Dismiss is DENIED.
3. Defendant shall file its response to Plaintiffs’ Complaint within 20 days of the date of this
Order.
DONE AND ORDERED in Escambia County, Florida.
de JUDGE JAN SHACKELFORD in 2027 CA 002363
fn 1103/2021 16:02:31 fiezasoMFiling # 136015144 E-Filed 10/06/2021 12:01:47 PM
IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR SEMINOLE COUNTY, FLORIDA
CASE NO.: 2021-CA-001820
AMY PHELPS,
Plaintiff,
vs.
FAMILY SECURITY INSURANCE
COMPANY, INC.,
Defendant.
/
ORDER DENYING MOTION TO DISMISS
THIS CAUSE came before the Court on “Defendant’s Amended Motion to Dismiss, or
in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees” filed on September 8,
2021. Having reviewed the Motion, Plaintiff’s response, and the court file, and being otherwise
fully advised, it is hereby ORDERED AND ADJUDGED that:
1. “Defendant’s Amended Motion to Dismiss, or in the Alternative, Motion to
Strike Plaintiff’s Claim for Attorney’s Fees” is DENIED.
2. Defendant shall have twenty (20) days from the date this Order is rendered to
serve a response.
DONE AND ORDERED in Chambers at Sanford, Seminole County, Florida, on
Tuesday, October 5, 2021.
59-2021-CA-001820 10/05/2021 11:19:54 PM
LLZE LEE“ EEO
Jessica Recksiedler, Circuit Judge
59-2021-CA-001820 10/05/2021 11:19:54 PM
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this Order has been furnished by e-mail or U.S.
#** E-FILED: GRANT MALOY, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL 10/06/2021 12:01:46 PM.**#*Mail on Wednesday, October 6, 2021, to the following:
SHANNON M WHITESELL JOSEPH GELLI
shannon.whitesell@thekrfirm.com jgelli@garrisonyount.com
service2@thekrfirm.com vseaman@garrisonyount.com
eservice@garrisonyount.com
Ali A Kadir Benjamin Raslavich
ali@thekrfirm.com ben@thekrfirm.com
service2@thekrfirm.com
Shannon Whitesell Carolina Melinda Suazo Esq.
shannon.whitesell@thekrfirm.com csuazo@garrisonyount.com
eservice@garrisonyount.com
Carolina M. Suazo, Esq.
csuazo@garrisonyount.com
59-2021-CA-001820 10/06/2021 12:01:10 PM
Vanessa Lau, Judicial Assistant
59-2021-CA-001820 10/06/2021 12:01:10 PM
2 of 2Filing # 137892300 E-Filed 11/04/2021 11:11:19 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2021-018396-CA-01
SECTION: CA09
JUDGE: Pedro P Echarte Jr.
Mary Lou Waddell
Plaintiff(s)
vs.
State Farm Florida Insurance Company
Defendant(s)
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This cause having come before this Court on November 3, 2021 in regards to Defendant’s
Motion to Dismiss the Plaintiff's Complaint pursuant to Fl. St. § 627.70152, the Court having
heard argument of counsel and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
1. Defendant's Motion to Dismiss is denied. Defendant shall have ten (10) days from
November 3, 2021 within which to file its answer to the Plaintiffs Complaint.
2. THIS TIME LIMIT MAY NOT BE EXTENDED. FAILURE TO ANSWER AS
ORDERED HEREIN SHALL RESULT IN SANCTIONS WHICH MAY BE
IMPOSED SUA SPONTE WITHOUT FURTHER NOTICE OR HEARING AND WHICH
MAY INCLUDE STRIKING OF PLEADINGS, ENTRY OF DEFAULT, DISMISSAL
AND MONETARY SANCTIONS.
Case No: 2021-018396-CA-01 Page | of 2DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 4th day of
November, 2021.
soar crease SE 04-2021 11:00 4
2021-018396-CA-01 11-04-2021 11:00 AM
Hon. Pedro P Echarte Jr.
CIRCUIT COURT JUDGE
Electronically Signed
Final Order as to All Parties SRS #: 12 (Other)
THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS
FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL
PARTIES.
Electronically Served:
Charles H Watkins, cw-kd@kubickidraper.com
Christopher J Maranges, becky@marangeslaw.com
Christopher J Maranges, madeline@marangeslaw.com
Christopher J Maranges, pleadings@marangeslaw.com
Madeline Moreira, madeline@marangeslaw.com
Physically Served:
Case No: 2021-018396-CA-01 Page 2 of 2Filing # 137333422 E-Filed 10/26/2021 09:14:55 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. CACE21015300. DIVISION 21 JUDGE Michele Towbin Singer
Michael Marsh
Plaintiff(s) / Petitioner(s)
Vv.
Tower Hill Select Insurance Company
Defendant(s) / Respondent(s)
/
ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
FOR FAILURE TO COMPLY WITH FLORIDA STATUTE § 627.70152
This cause, having come before the court on October 25, 2021, on Defendant’s Motion to Dismiss
Plaintiff's Complaint for Failure to Comply with Florida Statute §627.70152, the Court having heard
argument of counsel and otherwise being fully advised in the premises, it is ORDERED AND
ADJUDGED:
1. Defendant's motion is denied. See Menendez v. Progressive Exp. Ins. Corp., 35 So. 3d 873 (Fla.
2010).
2. Defendant shall serve its answer to Plaintiff's complaint within 10 days of the date of the order.
Both parties shall serve responses to the pending discovery requests within 30 days of the date
of this order.
3. When this matter is at issue under Fla. R. Civ. P. 1.440, either party shall promptly file a Notice of
Trial.
DONE and ORDERED in Chambers, at Broward County, Florida on 10-26-2021.
CAGEPAOLS300 16
CACE21015300 10-26-2021 8:00 PM
Hon. Michele Towbin Singer
CIRCUIT JUDGE
Electronically Signed by Michele Towbin Singer
Copies Furnished To:CaseNo: CACE21015300
Page 2 of 2
Christopher J Maranges , E-mail : noemy@marangeslaw.com
Christopher J Maranges , E-mail : becky@marangeslaw.com
Christopher J Maranges , E-mail : pleadings@marangeslaw.com
Jason B Wolf Esq , E-mail : pleadings@ParaWolf.com
Noemy Estevez , E-mail : noemy@marangeslaw.com
Preview
Filing # 144272673 E-Filed 02/21/2022 10:46:37 AM HERNAN LOPEZ AND IBETTY LOPEZ, IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT IN AND FOR Plaintiffs, MIAMI-DADE COUNTY, FLORIDA v. CIVIL DIVISION WESTON INSURANCE COMPANY, CASE NO.: 2021-020616-CA-01 Defendant. / PLAINTIFFS’ RESPONSE TO DEFENDANT'S MOTION TO DISMISS REGARDING FLORIDA STATUTE 627.70152 AND THE NEWLY ENACTED PRESUIT NOTICE REQUIREMENT COMES NOW, Plaintiffs, HERNAN LOPEZ AND IBETTY LOPEZ (hereinafter "Plaintiffs"), by and through the undersigned counsel, pursuant to the Florida Rules of Civil Procedure, and hereby files this Response to Defendant's Motion to Dismiss regarding Florida Statute 627.70152 and the Newly Enacted Presuit Notice Requirement and, in support thereof, states as follows: 1. This matter stems from a breach of a property insurance policy issued with effective dates of coverage of April 9, 2020 to April 9, 2021. 2. On July 1, 2021, more than fourteen (14) months after the inception of the operative policy period, the newly enacted law under Section 627.70152, Florida Statutes, took effect. 3. Section 627.70152(3)(a), Florida Statutes, imposes as a condition precedent to suit the filing of a presuit notice for all claims subject to the statute; however, given that the statute lacks any mention of retroactivity and substantially affects the rights of policyholders, the presuit notice requirement only pertains to policies which took effect after July 1, 2021. 4. Now, despite the fact that the policy was in effect prior to the July 1, 2021 initiation date, Defendant filed its motion to dismiss for failure to provide a presuit notice and motion for extension of time to respond to discovery as pretextual means to delay this matter.MEMORANDUM OF LAW I. STANDARD OF A MOTION TO DISMISS A motion to dismiss tests whether the Plaintiff have stated a cause of action. Zeiger Crane Rentals, Inc. v. Double A Industries, 16 So. 3d 907, 910, (Fla. 4th DCA 2009). A motion to dismiss is not, however, to be used to determine factual issues. See The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006). See also Chodorow v. Porto Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3d DCA 2007). When determining the merits of a motion to dismiss, a court may not go beyond the four corners of the complaint or petition. Zieger, 16 So. 3d at 910. All allegations contained within the Complaint must be taken as true and any reasonable inferences drawn from the complaint must be construed in favor of the non-moving party. See Chodorow, 954 So.2d at 1242. II. STANDARD FOR RETROACTIVE APPLICATION OF NEW LAW All newly enacted statutes are presumed to apply prospectively. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla. 1999). In order to apply a statute retroactively, there is a two-pronged test which must be met: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010) citing Metro. Dade, 737 So.2d at 499. Furthermore, as it relates specifically to insurance policies, “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996); see also Lumbermens Mut. Cas. Co. v. Ceballos, 440 So.2d 612, 613 (Fla. 3d DCA 1983) (holdingthat a policy is governed by the law in effect at the time the policy is bound and issued as opposed to the law in effect at the time a loss giving rise to a claim occurs); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So.2d 1037, 1038 (Fla. 2d DCA 1979) (holding that the date of the loss does not determine the law applicable to a subsequent dispute). “TE]ven where the Legislature has expressly stated that a statute will have retroactive application, this Court will reject such an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty ... [and] ‘attaches new legal consequences to events completed before its enactment.’” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010) quoting Metro. Dade, 737 So.2d at 499 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)); see also State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995). Ill.AS NEITHER PRONG REGARDING THE RETROACTIVITY ANALYSIS CAN BE SATISFIED, THIS HONORABLE COURT MUST NOT APPLY THE PRESUIT NOTICE OF INTENT TO INITIATE LITIGATION AS RETROACTIVE AND, THEREFORE, SHALL NOT DISMISS PLAINTIFFS’ CAUSE OF ACTION a. Because there is no clear legislative intent regarding the retroactive application of Section 627.70152, Florida Statutes, the first prong of the retroactivity analysis cannot be met and, therefore, this Honorable Court may not impose the presuit notice requirement, nor associated penalties, upon the Plaintiffs. As stated above, Section 627.70152(3)(a), Florida Statutes, like all newly enacted statutes, is presumed to apply only prospectively, and that presumption can only be rebutted by “clear legislative intent” as “[r]equiring clear intent assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Metro. Dade County 737 So. 2d at 499 — 500. “The policy rationale behind this rule of construction is that the retroactive operation of statutes can be harsh and implicate due process concerns.” Jd. “In order to determine legislative intent as to retroactivity, both the terms of the statute and the purpose of the enactment must beconsidered.” Jd. at 500. “However, the mere fact that ‘retroactive application of a new statute would vindicate its purpose more fully ... is not sufficient to rebut the presumption against retroactivity.’” Id. quoting Landgraf v. USI Film Products, 511 U.S. at 286 (1994). Here, there is no evidence that the statute was intended to be applied retroactively. “If the Legislature intended to make the statute retroactive it could easily have said so.” Promontory Enterprises, Inc. v. S. Eng'g & Contracting, Inc., 864 So. 2d 479, 484 (Fla. 5th DCA 2004). It is not the court’s “function to divine legislative intent of retroactivity with guess or assumption. If there is not clear evidence that the Legislature intended to apply the statute retroactively,” the first prong of the requisite analysis must be answered in favor of non-retroactivity. Jd. Even the most nuanced argument that the statute is written in present tense does not serve to prove retroactive intent in anyway. In fact, this argument was expressly rejected by the United States Supreme Court over a decade ago. See Carr v. U.S., 560 U.S. 438, 450 (2010) (“Given the well-established presumption against retroactivity... it cannot be the case that a statutory prohibition set forth in the present tense applies by default to acts completed before the statute’s enactment.”)citing Johnson v. United States, 529 U.S. 694, 701 (2000) (“Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests”). Numerous prior statutory changes which impose similar presuit requirements have been held not to apply retroactively. See, e.g., Kravitz v. Benjamin, 608 So. 2d 584 (Fla. 4th Dist. App. 1992)(Presuit requirements of medical malpractice statute did not apply retroactively); Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106 (Fla. 1996)(Statute requiring underinsured motorist carrier to pay amount of offer from liability insurer within 30 days in order to preserve subrogation claim was substantive amendment operating prospectively, not retroactively); Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., 67 So. 3d 187, 197 (Fla. 2011)(2005 amendmentsto section 627.7015, Florida Statutes requiring that notice of the availability of mediation be provided to a policyholder prior to invocation of the appraisal process by residential insurers do not apply retroactively); See also, Zawadzki v. Liberty Mut. Fire Ins. Co., 8:12-CV-950-T-30MAP, 2012 WL 3656456, at *3 (M.D. Fla. Aug. 23, 2012)(statutory changes to sinkhole statute do not apply retroactively); Am. Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011)(Asbestos and Silica Compensation Fairness Act section providing that particular physical impairment symptoms were an essential new element of asbestos cause of action, a requirement that never existed before the Act’s enactment, could not be retroactively applied to Plaintiff asbestos-related claims for damages consistent with due process clause of State Constitution); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995)(Statute altering damages recoverable in statutory bad faith action against uninsured motorist insurer cannot be applied retroactively, notwithstanding that legislature expressly stated that statute was remedial and was to be applied retroactively). Because there exists no evidence of legislative intent, clear or otherwise, permitting the retroactive application of Section 627.70152(3)(a), the inquiry ends. The statute cannot, as a matter of settled law, be applied retroactively. b. Even if the legislature included clear language establishing legislative intent to apply the presuit notice requirement retroactively, because such a requirement alters substantive rights, creates new obligations, and imposes penalties, the statute fails the second prong of the retroactively analysis and, therefore, forbids this Honorable Court from imposing any presuit notice requirements upon the Plaintiffs. Even if the Court were to find, despite the absence of any clear legislative intent, grounds for the retroactive application of Section 627.70152(3)(a), such an application would still be impermissible, as it would clearly run afoul of constitutional principles and the stare decisis established by Menendez v. Progressive finding that a presuit notice of intent to initiate litigationis to be considered a substantive change thereby affecting constitutional protections in a manner preventing retroactive application. In Menendez, an insurance carrier failed to pay personal injury protection (“PIP”) benefits to its insured after she was injured in an automobile accident in June 2001. Menendez, supra, at 874. The policy in question was issued with effective dates of coverage between April 1, 2001, and October 1, 2001. /d. at 876. Beginning on June 19, 2001, during the effective dates of coverage for the insured’s policy, the legislature effectuated an amendment to Section 627.736, Florida Statutes, which, for the first time, required that an insured seeking PIP benefits must, in pertinent part, provide “written notice of an intent to initiate litigation.” Fla. Stat. § 627.736(11)(a) (2001). The insured in Menendez initiated their lawsuit against the insurance carrier in November 2002, nearly a year and a half after the effective date of the newly enacted presuit notice provision in the relevant statute. Menendez, supra, at 875. After extensive litigation at both the trial and appellate levels, Menendez was brought before the Supreme Court of Florida where it was ultimately determined that such a notice of intent to initiate litigation, even in the face of legislative intent for retroactive application, violated the substantive rights of the insured and, therefore, were not permissible to be applied retroactively. Jd. at 880. In reaching their decision regarding the second prong analysis, the Menendez Court stated that “the central focus of this Court’s inquiry is whether retroactive application of the statute ‘attaches new legal consequences to events completed before its enactment.’” Menendez, 35 So. 3d at 877 quoting Landgraf v. USI Film Prods., 511 U.S. at 270. In analyzing this second prong, the Menendez Court noted that, as with the enaction of Section 627.70152, Florida Statutes, the operative statutory changes in Menendez ‘(1) impose apenalty, (2) implicate attorneys’ fees, (3) grant an insurer additional time to pay benefits, and (4) delay the insured's right to institute a cause of action.” Menendez, 35 So. 3d at 878. The Court first illustrated that the Florida Supreme Court “generally held that statutes with provisions that impose additional penalties for noncompliance or limitations on the right to recover attorneys' fees do not apply retroactively “because it is, in substance, a penalty.” Jd. quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995). Furthermore, the Court previously held that “the statutory right to attorneys’ fees is not a procedural right, but rather a substantive right.” Menendez, surpa, citing Moser v. Barron Chase Sec., Inc., 783 So. 2d 231, 236 (Fla.2001). Finally, the Court determined that, as is the exact scenario with the matter sub judice, because the statutory amendment in Menendez allowed the avoidance of payment of attorney’s fees which were available at the time the policy took effect, permitted delayed payment regarding a claim by the insurer, and deferred the insured’s ability to file a cause of action for unpaid policy benefits, the statutory changes were substantive, not procedural, in nature and could not be applied retroactively. See Menendez at 879-80. As noted, the facts of this case are materially indistinct from those considered by the Florida Supreme Court in Menendez. Section 627.70152, Florida Statutes, states, in pertinent part, as follows: As a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. Notice to the insurer must be provided by the department to the e-mail address designated by the insurer under s. 624.422. The notice must state with specificity all of the following information: 1. That the notice is provided pursuant to this section. 2. The alleged acts or omissions of the insurer giving rise to the suit, which may include a denial of coverage. 3. If provided by an attorney or other representative, that a copy of the notice was provided to the claimant. 4. If the notice is provided following a denial of coverage, an estimate of damages, if known. 5. If the notice is provided followingacts or omissions by the insurer other than denial of coverage, both of the following: a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs. b. The disputed amount. Documentation to support the information provided in this paragraph may be provided along with the notice to the insurer. Fla. Stat. § 627.70152(3)(a) (2021). In addition, the statute provides that the “[s]ervice of a notice tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day notice period.” Fla. Stat. § 627.70152(3)(b) (2021). Furthermore, the statute provides the insurer with 10 business days to respond to the presuit notice by accepting coverage, denying coverage, asserting the right to reinspect the property, making a settlement offer, or requiring the claimant to participate in appraisal or another method of alternative dispute resolution. Fla. Stat. § 627.70152(4) (2021). Additionally, the statute imposes a penalty for non- compliance with the pre-suit notice. Fla. Stat. § 627.70152(5) (2021). Finally, the statute drastically impacts a claimant’s ability to collect attorney fees. Fla. Stat. § 627.70152(8) (2021). The provisions found to be “problematic” by the Menendez Court are directly contemplated by the statute in question in this matter. As in Menendez, the statutory provisions of Section 627.70152 explicitly “(1) impose a penalty, (2) implicate attorneys’ fees, (3) grant an insurer additional time to pay benefits, and (4) delay the insured’s right to institute a cause of action.” Menendez, 35 So. 3d at 878. Accordingly, it is patently frivolous to suggest that Section 627.70152 is anything but substantive or that retroactive application is permissible under the binding precedent set by the Supreme Court of Florida. For these reasons, the second prong of the retroactivity analysis cannot be met. In fact, Menendez is so well established in the state of Florida, other Courts and carriers have already rejected the argument brought forth by Defendant in light of same. See attached Composite Exhibit A.IV.CONCLUSION In the Complaint, the Plaintiffs allege that “[a]ll conditions precedent to the filing of this lawsuit have occurred, have been waived, or have been performed.” This, of course, is correct because the Complaint was filed based on an insurance policy in place long before any substantive statutory changes took effect. The only way for these statutory changes to apply to the policy in question would be for the two prong analysis regarding retroactive application of statutes to be adequately fulfilled; however, due to a total lack of clear, or any, language indicating the Legislature’s intent for retroactivity, the substantive nature of the changes contained within the operative statute, and the well-established biding precedent regarding same, there is absolutely no ability for the Defendant to satisfy either prong of the analysis, let alone both. As such, this Honorable Court must deny Defendant’s Motion to Dismiss and Motion for Extension of Time to Respond to Discovery. WHEREFORE, for the foregoing reasons, Plaintiffs, HERNAN AND IBETTY LOPEZ, respectfully request that this Honorable Court deny Defendant’s Motion to Dismiss and Motion to for Extension of Time to Respond to Discovery, and grant any and all other relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this foregoing document was sent via email on this 21* day of February, 2022. VARGAS GONZALEZ BALDWIN DELOMBARD, LLP. 815 Ponce De Leon Blvd., 3“ Floor Coral Gables, FL 33134 Tel: 305.631.2528 Fax: 305.631.2741 E-mail: Servicel0@VargasGonzalez.comE-mail: KBuckalew@VargasGonzalez.com By: /s/ Katherine N. Buckalew, Esq. Fla. Bar No.: 1017725“Composite Exhibit A”Filing # 142235910 E-Filed 01/19/2022 12:17:30 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO: 2021-018103-CA-01 SECTION: CA02 JUDGE: William Thomas Hulberto Alvarez et al Plaintiff(s) vs. Universal Property & Casualty Insurance Company Defendant(s) / ORDER DENYING DEFENDANT’S MOTION TO DISMISS THIS CAUSE having come before the Court for consideration of the Defendant’s Motion to Dismiss, and the Court having heard argument from the parties and being otherwise fully advised of the premises, it is hereby ORDERED AND ADJUDGED as follows: Defendant’s Motion to Dismiss is predicated on Plaintiffs’ failure to comply with the pre- suit notice requirements of Fla. Stat. § 627.70152. It is undisputed that the policy of insurance at issue in this case pre-dates the enactment of Fla. Stat. § 627.70152; the policy was in effect from September 9, 2019 to September 9, 2020, and Fla. Stat. § 627.70152 was signed into law on June 11, 2021. Nonetheless, Defendant urges this Court to apply the statute retroactively. This Court finds that Fla. Stat. § 627.70152 cannot be retroactively applied and therefore Plaintiffs were not obligated to comply with its pre-suit notice requirements. Accordingly, Defendant’s Motion to Dismiss is denied. Newly enacted statutes are presumed to apply prospectively only. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla. 1999). In the context of first party insurance actions in which a statutory change post-dates the insurance policy, Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla. 2010) is instructive. Menendez was a first party action in which the insurance policy at issue predated a change in the law requiring the insured to provide pre-suit notice of intent to litigate. The Supreme Court of Florida applied a two-pronged test to determine whether the new statutory requirement could be applied retroactively to bind the insureds: 1. Did the legislature clearly intend for the changes in the statute to be applied retroactively? 2. If so, would enforcing the legislative intent to apply the statute retroactively violate constitutional principles by substantively changing individuals’ pre-existing rights? Both prongs of the Menendez test compel this Court to decline to apply Fla. Stat. § 627.70152 retroactively. Regarding the first prong, “[i]f the Legislature intended to make the Case No: 2021-018103-CA-01 Page | of 4statute retroactive it could easily have said so.” It did not do so here. The text of the statute is silent regarding retroactive application. Therefore, this Court concludes that Fla. Stat. § 627.70152 cannot be retroactively applied pursuant to the first prong of the Menendez test. Even assuming arguendo that the Legislature did clearly intend for Fla. Stat. § 627.70152 to be applied retroactively, this Court finds that the statute substantively changes pre-existing rights of policyholders and therefore cannot be applied retroactively under the second prong of Menendez. “[T]he Court will reject retroactive application if it would impair a vested right, create a new obligation, or impose a new penalty.” Id. at 877. Like the statute at issue in Menendez, Fla. Stat. § 627.70152 constitutes a substantive change in law because it “(1) impose[s] a penalty, (2) implicate[s] attorneys’ fees, (3) grant[s] an insurer additional time to pay benefits, and (4) delay[s] the insured’s right to institute a cause of action.” Id. at 878. Noncompliance with § 627.70152’s pre-suit notice requirement results in penalties of dismissal of the insured’s lawsuit pursuant to § 627.70152(5) and forfeiture of the insured’s right to recover attorneys’ fees pursuant to § 627.70152(8)(b). It is settled law in Florida that the statutory right to attorneys’ fees is a substantive right and therefore statutory limitations on same cannot be applied retroactively. See generally, Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 236 (Fla. 2001); Young v. Altenhaus, 472 So.2d 1152 (Fla. 1985); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995); Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla. 2010). The new statute limits insureds’ right to attorneys’ fees both by prohibiting the recovery of fees if a lawsuit is dismissed for noncompliance and by establishing a new schedule for calculating and awarding fees based on the difference between the amount ultimately obtained by the insured and the pre-suit settlement offer made by the insurer. Defendant argues that the provisions of Fla. Stat. § 627.70152 implicating attorneys’ fees should be separated from the pre-suit notice requirement such that the latter remains retroactively enforceable even if the former is not. This Court disagrees. Pursuant to the plain language of Fla. Stat. § 627.70152(8)(b), if this Court were to grant Defendant’s Motion to Dismiss for Plaintiffs’ failure to comply with the pre-suit notice requirements of (3)(a), then Plaintiffs would be prohibited from recovering attorneys’ fees for services rendered up to the point of dismissal. This Court finds that it would be illogical, unworkable, and contrary to legislative intent to retroactively enforce the provision of the statute requiring dismissal for failure to comply with the pre-suit notice requirement while declining to retroactively enforce the provision prohibiting an award of attorneys’ fees upon such dismissal. The new statute implements further substantive changes by allowing insurers to delay payment of benefits to insureds, which not only impacts insureds’ rights to timely payment of insurance benefits but also limits their entitlement to interest on overdue benefits, their right to bring suit for overdue benefits, and their right to attorneys’ fees. In sum, the statute at issue here is materially indistinguishable from that which was considered by the Florida Supreme Court in Menendez. Therefore, this Court finds that Fla. Stat. § 627.70152 constitutes a substantive change in law and therefore cannot be retroactively applied to bind insureds who entered an insurance contract before the statute was enacted. For the aforementioned reasons, Defendant’s Motion to Dismiss is hereby DENIED. Defendant shall file its answer to Plaintiffs’ Complaint within 20 days of the date of this Order. Additionally, Defendant’s Motion for Protective Order is hereby DENIED as moot. Defendant Case No: 2021-018103-CA-01 Page 2 of 4shall file its responses to Plaintiffs’ discovery requests within 30 days of the date of this Order. DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 19th day of January, 2022. (poms -cria pao spoone naioa 2021-018103-CA-01 01-19-2022 12:04 PM Hon. William Thomas CIRCUIT COURT JUDGE Electronically Signed No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT Electronically Served: Andrew J Vargas, epleadings@vargasgonzalez.com Beatriz Benitez, BBenitez@VargasGonzalez.com Beatriz Benitez, Service7@VargasGonzalez.com Eduardo Pimentel, EPimentel@VargasGonzalez.com Eduardo Pimentel, EPLeadings@VargasGonzalez.com Eduardo Pimentel, ServiceS@VargasGonzalez.com Elexis Stephanie Wolis, upciceservice0 1 @universalproperty.com Elexis Stephanie Wolis, rm1110@universalproperty.com Elexis Stephanie Wolis, ew0518@universalproperty.com Joseph A Kovecses Jr., jkovecses@pdmplaw.com Joseph A Kovecses Jr., vdomenech@pdmplaw.com Joseph A Kovecses Jr., cmoreno@pdmplaw.com Katherine N. Buckalew, kbuckalew@vargasgonzalez.com Katherine N. Buckalew, Service 10@vargasgonzalez.com Paula B Leite, pleite@pdmplaw.com Paula B Leite, lspeake@pdmplaw.com Paula B. Leite, Esquire, pleite@pdmplaw.com Paula B. Leite, Esquire, lspeake@pdmplaw.com Case No: 2021-018103-CA-01 Page 3 of 4Physically Served: Case No: 2021-018103-CA-01 Page 4 of 4IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA TS GENERAL CIVIL DIVISION B _ SS DONALD STOKELY and ap g MEIKAH STOKELY, CASE NO: 21-CA-5705 Plaintiffs, ve DIVISION: J SECURITY FIRST INSURANCE COMPANY, Defendant. / ORDER DENYING DEFENDANT’S MOTION TO DISMISS 7 u T AGH 128 THIS CAUSE having come before the Court on Defendant, Security First Insurance Company’s, Motion to Dismiss, having reviewed the Motion, Plaintiffs response, and otherwise being duly advised in the premises, it is hereby ORDERED AND ADJUDGED that: Defendant’s Motion is DENIED. This case involves Plaintiffs claim for benefits under a policy of insurance with effective dates of December 15, 2019, to December 15, 2020. Plaintiff's Complaint was filed on July 9, 2021. F.S. § 627.70152 became effective July 1, 2021. F.S. § 627.70152 creates pre-suit notice requirements similar to the medical malpractice pre-suit notice statute. Defendant argues that F.S. § 627.70152 should be retroactively applied here. However, this Court disagrees. The statute is substantive and cannot be applied retroactively to a policy which pre-dates the effective date of July 1, 2021. DONE AND ORDERED, this / Daay of re 22 [”Copies furnished to: Barbara Hernando, Esq. Kevin Elmore, Esq.Filing # 136331392 E-Filed 10/11/2021 06:37:08 PM IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. COCE21040134 DIVISION 55 JUDGE Daniel Kanner Luis Gomez, et al Plaintiff(s) / Petitioner(s) Vv. Spinnaker Insurance Company Defendant(s) / Respondent(s) ORDER DENYING MOTION TO DISMISS THIS CAUSE having come before the Court for consideration of the Defendant's Motion to dismiss, and the Court having heard argument from the parties and being otherwise fully advised in the Premises, it is hereupon, ORDERED AND ADJUDGED as follows: Undisputed Facts 1. This case involves a first party property damage claim arising from a water leak which occurred on October 2, 2020. . The claim for the damage was denied by the Defendant. . The effective policy period for this claim is May 27, 2020 to May 27, 2021. 4. On June 11, 2021, Governor DeSantis signed SB 76 which became effective July 1, 2021. SB 76 is a comprehensive bill relating to property insurance which created Florida Statute §627.70152 addressed to suits arising under a property insurance policy such as that in the present case. 5. Section 627.70152(3),et seq., expressly mandates that an insured comply with pre-suit notice wn requirements, which include the service of a Notice of Intent to Initiate Litigation on the Department of Financial services, as a condition precedent to filing suit. 6. The Plaintiff did not comply with the notice requirement. . On July 13, 2021, this suit was filed. 8. On August 17, 2021, the Defendant moved to dismiss this action for noncompliance with §627.70152. NCaseNo: COCE21040134 Page 2 of 3 Analysis There is little case law on point due to the newness of this law. The Plaintiff cited Menendez v Progressive Express Insurance Co 35 So.3d 873 (Fla 2010) for the proposition that the statute would substantively change the Plaintiff's rights under the policy and therefore should not be applied retroactively to a policy that predates the change in the law. The Defendant urged the court to rely on the reasoning in SFR Services v Indian Harbor Insurance Company, 2021 WL 1165185 to conclude that the Statute only creates procedural changes and should be applied retroactively. The case at bar is similar Menendez. Although Menendez dealt with a different statute (PIP), it was a first party claim where the policy predated the change in the law. The Change in the law in Menendez also involved a pre- suit notice of intent to litigate. The Supreme Court in Menendez found that while the Legislature intended the new Statute to apply retroactively, it substantively altered the rights of the parties that were already in existence at the time of the change in the law. As a result of these substantive changes, the law could not be applied retroactively. SER, however, is a case that involved an Assignment of Benefits (AOB). While the SFR Court allowed the application of a statute that was passed after the Insurance policy became effective, its reasoning was not at odds with Menendez. In_SER, the Insurance Policy predated the change in the law but the AOB was signed after the law became effective. The Court reasoned that the law changed what was required for a valid AOB, but did not change the terms of the preexisting policy. Ultimately, because the AOB was signed after the change in the law, it was not found to be applied retroactively. In this matter, there is no AOB. It is a first party action in which the relevant contract was signed prior to the change in the law. The facts and issue in this matter are very similar to those in Menendez. Therefore, this Court finds that the change in the law is substantive and should not be applied retroactively. It is hereby Ordered and adjudged that the Defendant's Motion to Dismiss is DENIED. DONE and ORDERED in Chambers, at Broward County, Florida on 10-11-2021. 7 ——— COCE21040134 10-11-2021 1:28 PM Hon. Daniel Kanner COUNTY JUDGE Electronically Signed by Daniel Kanner Copies Furnished To: Cathleen Rodriguez , E-mail : crodriguez@louislawgroup.com Charles A. Muniz , E-mail : cmuniz@louislawgroup.com Charles A. Muniz , E-mail : service@louislawgroup.com Pierre Andre Louis Esq. , E-mail : pierre@louislawgroup.com Pierre Andre Louis Esq. , E-mail : service@louislawgroup.com Steven E Foor , E-mail : sfoor@wylandtadros.comCaseNo: COCE21040134 Page 3 of 3 Steven E Foor , E-mail : asanders@wylandtadros.comFiling # 136440256 E-Filed 10/13/2021 09:41:57 AM IN THE COUNTY COURT IN AND FOR LEE COUNTY, FLORIDA JEANINE MICAT, JULIE PIERRE, PLAINTIFFS, CASE NO.: 21-CC-003549 VS. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, DEFENDANT. / ORDER DENYING DEFENDANT’S MOTION TO DISMISS THIS CAUSE came to be heard on Defendant’s Motion to dismiss, and after hearing argument on October 11, 2021, reviewing the file, and otherwise being fully apprised of the premises, ORDERS AND ADJUDGES: Defendant’s Motion to Dismiss was predicated on Plaintiffs’ failure to comply with the pre-suit notice requirements of Fla. Stat. § 627.70152. Defendant’s Motion to Dismiss is DENIED. Menendez v. Progressive Express Ins. Co.. 35 So. 3d 873 (Fla. 2010). Defendant shall answer the complaint within 20 days. DONE AND ORDERED in Chambers in Lee County, Florida (XW Electronic Service List Signed by Nicole Lynn Mirra 10/13/2021 09:41:41 eDeSPXGe Brian Adam Oltchick Brian Adam Oltchick Brian Adam Oltchick Carolina M. Suazo, Esq. Carolina Melinda Suazo Esq. Carolina Melinda Suazo Esq. John Stat Bernstein eFiled Lee County Clerk of Courts Page 1IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA LENORA CLA YBORNE CASE NO: 21-CC-078099 Plaintiff, vs. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA Defendant. / ORDER DENYING DEFENDANT’S MOTION TO DISMISS BASED UPON FAILURE TO SUBMIT A NOTICE OF INTENT TO INITIATE LITIGATION PER FLA. STAT. $627.70152 THIS MATTER having come before the Court on Defendant’s Motion to Dismiss Plaintiff's Complaint (hereinafter “Motion”), the Court having heard argument of counsel at the hearing on October 11, 2021, and being otherwise fully advised on the premises, it is hereby: ORDERED AND ADJUDGED that: 1. The Motion to Dismiss is denied. 2. Defendant shall file a response to the Complaint within 20 days of this Order. DONE AND ORDERED in Chambers in Tampa, Hillsborough County, Florida, this day of , 2021. eee 099 (ON 4 Sigs AM (099 10/14/202179:52:53 AM HONORABLE JAMES S. MOODY IIT COUNTY COURT JUDGE Copies furnished to: Alex Lyle, Esq. Attorney for Defendant Jeremy R. Griner, Esq. Attorney for Plaintiff 10/14/2021 09:52:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit. Page 1IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA GENERAL CIVIL DIVISION EDWINA PEYTON, CASE NO.: 21-CA-5661 Plaintiff, DIVISION: J Vv. SECURITY FIRST INSURANCE COMPANY, Defendant. / ORDER DENYING DEFENDANT’S MOTION TO DISMISS THIS CAUSE having come before the Court on Defendant, Security First Insurance Company’s, Motion to Dismiss, having reviewed the Motion, Plaintiff's response, and otherwise being duly advised in the premises, it is hereby ORDERED AND ADJUDGED that: Defendant’s Motion is DENIED. This case involves Plaintiff's claim for benefits under a policy of insurance with effective dates of April 25, 2020, to April 25, 2021. Plaintiff's Complaint was filed on July 8, 2021. F.S. § 627.70152 became effective July 1, 2021. F.S. § 627.70152 creates pre-suit notice requirements similar to the medical malpractice pre-suit notice statute and personal injury protection pre-suit notice. Defendant argues that F.S. § 627.70152 should be retroactively applied here. However, this Court disagrees. The statute is substantive and cannot be applied retroactively to a policy which pre-dates the effective date of July 1, 2021. See Menendez v. Progressive, 35 So.3d 873 (Fla. 2010). 10/25/2021 10:57:22 AM Electronically Filed: Hillsborough County/13th Judicial Circuit. Page 1Accordingly, Defendant’s Motion is Denied. Defendant shall have ten days to file a response to Plaintiff's Complaint. DONE and ORDERED in Chambers at Hillsborough County, FL on this day of oe arcomagseer Tiosor isi SM 21-CA-005661 10:57:21 AM Honorable Rex Martin Barbas Copies furnished to: Aaron S. Kling, Esquire, For the Plaintiff Kevin B. Elmore, Esquire, For the Defendant 10/25/2021 10:57:22 AM Electronically Filed: Hillsborough County/13th Judicial Circuit. Page 2Filing # 137857198 E-Filed 11/03/2021 05:11:30 PM IN THE CIRCUIT COURT FOR THE IST JUDICIAL CIRCUIT IN AND FOR ESCAMBIA COUNTY, FL. CHARLES AND VICTORIA CARTER Plaintiffs, CASE NO.: 2021-CA-002363 vs. HOMEOWNERS CHOICE PROPERTY AND CASUALTY INSURANCE Defendant. / ORDER DENYING DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT THIS MATTER having come before this Court upon Defendant’s Motion to Dismiss Plaintiffs” Complaint, and the Court having reviewed the Motion and court file and being otherwise fully advised by the parties at a hearing on Defendant’s Motion on October 29, 2021, it is hereby ORDERED AND ADJUDGED that: 1. Plaintiff's are not required to provide a Notice of Intent to Initiate Litigation pursuant to F.S. 627.70152(3)(2), and such requirement is not retroactively applied, as it is a substantive change to the law. 2. Defendant’s Motion to Dismiss is DENIED. 3. Defendant shall file its response to Plaintiffs’ Complaint within 20 days of the date of this Order. DONE AND ORDERED in Escambia County, Florida. de JUDGE JAN SHACKELFORD in 2027 CA 002363 fn 1103/2021 16:02:31 fiezasoMFiling # 136015144 E-Filed 10/06/2021 12:01:47 PM IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA CASE NO.: 2021-CA-001820 AMY PHELPS, Plaintiff, vs. FAMILY SECURITY INSURANCE COMPANY, INC., Defendant. / ORDER DENYING MOTION TO DISMISS THIS CAUSE came before the Court on “Defendant’s Amended Motion to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees” filed on September 8, 2021. Having reviewed the Motion, Plaintiff’s response, and the court file, and being otherwise fully advised, it is hereby ORDERED AND ADJUDGED that: 1. “Defendant’s Amended Motion to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees” is DENIED. 2. Defendant shall have twenty (20) days from the date this Order is rendered to serve a response. DONE AND ORDERED in Chambers at Sanford, Seminole County, Florida, on Tuesday, October 5, 2021. 59-2021-CA-001820 10/05/2021 11:19:54 PM LLZE LEE“ EEO Jessica Recksiedler, Circuit Judge 59-2021-CA-001820 10/05/2021 11:19:54 PM CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this Order has been furnished by e-mail or U.S. #** E-FILED: GRANT MALOY, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL 10/06/2021 12:01:46 PM.**#*Mail on Wednesday, October 6, 2021, to the following: SHANNON M WHITESELL JOSEPH GELLI shannon.whitesell@thekrfirm.com jgelli@garrisonyount.com service2@thekrfirm.com vseaman@garrisonyount.com eservice@garrisonyount.com Ali A Kadir Benjamin Raslavich ali@thekrfirm.com ben@thekrfirm.com service2@thekrfirm.com Shannon Whitesell Carolina Melinda Suazo Esq. shannon.whitesell@thekrfirm.com csuazo@garrisonyount.com eservice@garrisonyount.com Carolina M. Suazo, Esq. csuazo@garrisonyount.com 59-2021-CA-001820 10/06/2021 12:01:10 PM Vanessa Lau, Judicial Assistant 59-2021-CA-001820 10/06/2021 12:01:10 PM 2 of 2Filing # 137892300 E-Filed 11/04/2021 11:11:19 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO: 2021-018396-CA-01 SECTION: CA09 JUDGE: Pedro P Echarte Jr. Mary Lou Waddell Plaintiff(s) vs. State Farm Florida Insurance Company Defendant(s) / ORDER DENYING DEFENDANT’S MOTION TO DISMISS This cause having come before this Court on November 3, 2021 in regards to Defendant’s Motion to Dismiss the Plaintiff's Complaint pursuant to Fl. St. § 627.70152, the Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows: 1. Defendant's Motion to Dismiss is denied. Defendant shall have ten (10) days from November 3, 2021 within which to file its answer to the Plaintiffs Complaint. 2. THIS TIME LIMIT MAY NOT BE EXTENDED. FAILURE TO ANSWER AS ORDERED HEREIN SHALL RESULT IN SANCTIONS WHICH MAY BE IMPOSED SUA SPONTE WITHOUT FURTHER NOTICE OR HEARING AND WHICH MAY INCLUDE STRIKING OF PLEADINGS, ENTRY OF DEFAULT, DISMISSAL AND MONETARY SANCTIONS. Case No: 2021-018396-CA-01 Page | of 2DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 4th day of November, 2021. soar crease SE 04-2021 11:00 4 2021-018396-CA-01 11-04-2021 11:00 AM Hon. Pedro P Echarte Jr. CIRCUIT COURT JUDGE Electronically Signed Final Order as to All Parties SRS #: 12 (Other) THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL PARTIES. Electronically Served: Charles H Watkins, cw-kd@kubickidraper.com Christopher J Maranges, becky@marangeslaw.com Christopher J Maranges, madeline@marangeslaw.com Christopher J Maranges, pleadings@marangeslaw.com Madeline Moreira, madeline@marangeslaw.com Physically Served: Case No: 2021-018396-CA-01 Page 2 of 2Filing # 137333422 E-Filed 10/26/2021 09:14:55 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE21015300. DIVISION 21 JUDGE Michele Towbin Singer Michael Marsh Plaintiff(s) / Petitioner(s) Vv. Tower Hill Select Insurance Company Defendant(s) / Respondent(s) / ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO COMPLY WITH FLORIDA STATUTE § 627.70152 This cause, having come before the court on October 25, 2021, on Defendant’s Motion to Dismiss Plaintiff's Complaint for Failure to Comply with Florida Statute §627.70152, the Court having heard argument of counsel and otherwise being fully advised in the premises, it is ORDERED AND ADJUDGED: 1. Defendant's motion is denied. See Menendez v. Progressive Exp. Ins. Corp., 35 So. 3d 873 (Fla. 2010). 2. Defendant shall serve its answer to Plaintiff's complaint within 10 days of the date of the order. Both parties shall serve responses to the pending discovery requests within 30 days of the date of this order. 3. When this matter is at issue under Fla. R. Civ. P. 1.440, either party shall promptly file a Notice of Trial. DONE and ORDERED in Chambers, at Broward County, Florida on 10-26-2021. CAGEPAOLS300 16 CACE21015300 10-26-2021 8:00 PM Hon. Michele Towbin Singer CIRCUIT JUDGE Electronically Signed by Michele Towbin Singer Copies Furnished To:CaseNo: CACE21015300 Page 2 of 2 Christopher J Maranges , E-mail : noemy@marangeslaw.com Christopher J Maranges , E-mail : becky@marangeslaw.com Christopher J Maranges , E-mail : pleadings@marangeslaw.com Jason B Wolf Esq , E-mail : pleadings@ParaWolf.com Noemy Estevez , E-mail : noemy@marangeslaw.com